I am a practicing attorney with the law firm of Bopp,
Coleson & Bostrom in Terre Haute, Indiana. Since 1980, a
significant portion of my law practice has involved the representation
of not-for-profit corporations and political action committees
including the National Right to Life Committee, Inc. and the
Christian Coalition, Inc. regarding compliance with the Act.
In that connection, I have represented parties in numerous FEC
investigations and enforcement actions and in four separate successful
law suits which resulted in five separate FEC regulations being
struck for violating the First Amendment to the United States
Because of my developed expertise in federal election
law, I testified in 1996 before this Committee regarding proposed
changes in the Act. I testified on behalf of the Free Speech
Coalition, a bipartisan coalition of public interest groups co-chaired
by Ellie Smeal of the Fund for the Feminist Majority and David
Keene of the American Conservative Union. In addition, I have
testified on several occasions before the Federal Election Commission
regarding proposed FEC regulations. I currently serve as Vice
President of the Free Speech and Election Law Practice Group of
the Federalist Society.
The proponents of limits on political speech have
criticized the administration of the Federal Election Campaign
Act because of their belief that the Act unduly limits the power
of the FEC to enforce the Act due to the FEC's structure and limits
on the FEC's authority. As a result, they advocate that Congress
grant wide-ranging additional authority to the FEC to enforce
the Act and that Congress appropriate substantially more funds
for administration of the Act.
There is no question that the FEC has failed to aggressively
deal with undisputed violations of the FEC such as late filing
of reports, acceptance of illegal foreign campaign contributions
and violations of campaign contribution limits. As a result,
transgressions by major political party candidates and parties
have received insufficient attention.
The FEC's failure to address serious campaign violation
comes not from a lack of authority or funds, but because of distorted
priorities resulting from the FEC's effort to circumvent First
Amendment limits on the regulation of free political speech of
citizens groups contained in the United States Supreme Court decision
in Buckley v. Valeo, 424 U.S. 1 (1976).
In this 20 year effort to suppress political speech,
the FEC has treated the First Amendment as a loophole in the FECA
which it is their duty to close, and the FEC has treated United
States Supreme Court decisions against it as an inconveniences
to be overcome. As a result, the FEC has engaged is a sustained
and unprecedented assault on the First Amendment. That assault
has consumed enormous FEC resources. Rather than enforce the
many uncontroverial and clearly constitutional provisions of the
FECA, the FEC has used its limited resources to launch a series
of regulatory changes and enforcement actions with the intent
of expanding its powers to regulate free speech. This effort
has resulted in a series of court cases striking down these regulations
and defeating the FEC's enforcement actions.
The courts have, therefore, frustrated the unlawful
efforts of the FEC to impinge on free speech, but at an enormous
cost in taxpayer funds and in attorney fees for successful victims
of the FEC's enforcement actions. The cost to the free speech
of those intimidated by the heavy hand of the FEC, however, cannot
be calculated. The FEC is simply out of control and must be reigned
in order to prevent further damage to First Amendment interests
and in order to refocus the efforts of the FEC toward its legitimate
FEC'S WAR ON THE FIRST AMENDMENT
Serious questions have been raised regarding FEC
administration of the Act by non-partisan public-interest groups,
by courts, and by commentators. For instance, a major study by
the non-partisan Fair Government Foundation found that:
(1) the Federal Election Commission has attempted
to arrogate to itself policy-making authority that Congress has
not granted to it,
(2) the Federal Election Commission has refused to
comply with constitutional limitations on its authority as identified
by the United States Supreme Court in such cases as Buckley
v. Valeo, and
(3) the Federal Election Commission has shown a shocking
indifference to the effect of its regulatory activities on the
free speech rights of those potentially subject to its jurisdiction,
resulting in a sever chilling effect on constitutionally protected
Fair Government Foundation, The FEC's Express
War on Free Speech (1996).
In fact, the FEC's intransigence in complying with
free expression rights after the Supreme Court's decision in Buckley
v. Valeo, led Chief Judge Kaufman of the Second Circuit to
comment of the FEC, in CLITRIM, 616 F.2d 45, 53-54 (2d
Cir. 1980) (Kaufman, Chief Judge, concurring), that
[T]he insensitivity to First Amendment values displayed
by the Federal Election Commission (FEC) in proceeding against
these defendants compels me to add a few words about what I perceive
to be the disturbing legacy of the Federal Election Campaign Act
(FEC ), 2 U.S.C. '' 431, et seq. . . . .
Indeed , before Buckley v. Valeo . . . the Supreme
Court had emphasized that freedom to criticize public officials
and oppose or support their continuation in office constitutes
the Acentral meaning" of the First Amendment. . . .
If speakers are not granted wide latitude to disseminate information
without government interference, they will "steer far wider of
the unlawful zone," . . . thereby depriving citizens
of valuable opinions and information. This danger is especially
acute when an official agency of government has been created to
scrutinize the content of political expression, for such bureaucracies
feed upon speech and almost ineluctably come to view unrestrained
expression as a potential "evil" to be tamed, muzzled, or sterilized.
. . . The possible inevitability of this institutional
tendency, however, renders this abuse of power no less disturbing
to those who cherish the First Amendment and the unfettered political
process it guarantees. Buckley v. Valeo, supra,
imposed upon the FEC the weighty, if not impossible, obligation
to exercise its powers in a manner harmonious with a system of
free expression. Our decision today should stand as an admonition
to the Commission that, at least in this case, it has failed abysmally
to meet this awesome responsibility.
Thus, even as early as 1980, the intransigence to
the FEC in protecting First Amendment freedoms was obvious.
Unfortunately, the FEC has continued unabated in
its efforts to limit protected speech. Instead of enforcing the
important and uncontroversial provisions of the Act, the FEC has
focused its attention on "grassroots groups and citizens who want
to take part in the political debate, too, groups far less well-funded
and less capable of extricating themselves from the tangle of
FEC regulations." Thus, the FEC has functioned "more and more
as a censor of political expression, especially by issue-oriented,
grassroots activists." S. Hayward & ".R. Hayward, Gagging
on Political Reform, REASON 20 (Oct. 1996), attached as Exhibit
CONSTITUTIONAL PROTECTION OF ISSUE ADVOCACY
The principal effort of the FEC in suppressing free speech has focused on prohibiting issue advocacy by not-for-profit groups, unions and political parties. The basis for this misguided effort is the view that "issue advocacy" may influence an election and thus must be brought within the prohibitions of the FECA. The United States Supreme Court, however, has recognized that "issue advocacy" is vital to our representative democracy and must be given a wide birth. As a result, the FEC has lost, on First Amendment grounds, every case it has brought seeking to prohibit citizens groups from discussing the position of candidates on issues.
Lobbying groups, which have been subject to FEC enforcement
action, engage in extensive "issue advocacy." "Issue advocacy"
is simply discussing issues of public concern. While this usually
involves general educational activities of not-for-profit groups,
it also involves legislative lobbying and grass roots lobbying,
such as the 1993 "Helen and Louise" ad campaign which was credited
with turning the tide of public opinion against President Clinton's
health care plan. In fact, whenever a person or organization
discusses issues of public concern, he or she is involved in "issue
For many lobbying groups, grass roots lobbying also
includes publishing "scorecards" and "voter guides." "Scorecards"
report to the organization's membership on the votes of incumbent
members of Congress and rate them on their support for the organization's
position on bills. "Voter guides" are distributed to the general
public and contain a list of candidates' positions on issues.
By advising potential voters of the positions of
candidates on issues, each of these devices is a powerful tool
in the effort to persuade Congressmen to vote in accord with the
organization's positions on issues. "Issue advocacy," then, is
simply a part of "the free discussion of governmental affairs,"
protected by the First Amendment, upon which our system of democratic
representative government depends. Pennekamp v. Florida,
328 U.S. 331, 346 (1946).
The problem, according to the FEC, is that "issue
advocacy" can influence elections. If the FEC were successful
in bringing "issue advocacy" within its jurisdiction, incorporated
lobbying groups would be completely prohibited from engaging in
issue advocacy. Furthermore, individuals who engaged in issue
advocacy, but failed to put a disclaimer on their literature or
to report the expenditure to the FEC, would be subject to FEC
suit and fines.
The federal courts, however, have come to a different
conclusion. They understand that the First Amendment, which was
designed to protect "indispensable democratic freedoms," protects
"issue advocacy" because it involves the "free discussion of the
problems of society." Thomas v. Collins, 323 U.S. 516,
529-30 (1945). From the federal court's perspective, the problem
the distinction between discussion of issues and
candidates and advocacy of election or defeat of candidates may
often dissolve in practical application. Candidates, especially
incumbents, are often intimately tied to public issues involving
legislative proposals and governmental actions. Not only do candidates
campaign on the basis of their positions on various public issues,
but campaigns themselves generate issues of public interest."
Buckley, 424 U.S. at 42.
Thus, rather than limiting issue advocacy because
it might influence an election, as advocated by the FEC, the Supreme
Court has sought to protect issue advocacy, because it is vital
to our representative democracy. To this end, it has developed
a "bright-line" test to distinguish issue advocacy from active
This "bright-line" test provides that speech is not
active electioneering unless there are explicit words "expressly
advocating the election or defeat of a clearly identified candidate."
Id. at 74-81. As a result, "as long as persons and groups
eschew expenditures that in express terms advocate the election
or defeat of a clearly identified candidate, they are free to
spend as much as they want to promote the candidate and his views."
Id. at 45.
Lawrence Noble, general counsel to the FEC, however,
views such citizen discussion of public issues "as a major, major
breach in the election laws." What Mr. Noble does not understand,
however, is that issue-oriented speech is not just C or even mainly
C about elections but is about our representative democracy.
"Issue advocacy" is vital to our representative democracy.
The benefit of the bright-line "express advocacy"
test is that the speaker knows beforehand whether his or
her speech is under the FEC's jurisdiction. Without it, anytime
a person praises the position of a Congressman on an issue, or
criticizes him or her for a vote, the speaker could be viewed
as influencing an election and thus as engaging in prohibited
political speech. It is, therefore, only afterwards, when
the speaker is sued by the FEC, that he or she would know that
their speech is regulated. The result is self-censorship of
political discourse and a serious loss of speech in the "market
place of ideas."
FEC'S ENFORCEMENT ACTIONS AND REGULATORY EFFORTS
TO SUPPRESS ISSUE ADVOCACY
This FEC effort to suppress speech by citizens groups
has resulted in numerous enforcement actions, with subsequent
defeat of the FEC in court. The following is a list of these
FEC v. FSCME, 471 F.
Supp. 315 (D.D.C. 1979).
FEC v. CLITRIM, 616 F.2d
45 (2d Cir. 1980).
FEC v. Machinists Non-Partisan Political League,
655 F.2d 380 (D.C. Cir. 1981).
FEC v. Massachusetts Citizens for Life,
107 S. Ct. 616 (1986).
FEC v. Phillips Publishing,
517 F. Supp. 1308 (D.D.C 1981).
FEC v. NOW, 713 F. Supp.
428 (D.D.C. 1989).
FEC v. Survival Education Fund,
65 F.3d 285 (2nd Cir. 1995).
FEC v. Christian Action Network,
894 F. Supp. 946 (W.D.Va. 1995), aff'd, 92 F.3d 1178 (4th
FEC v. GOPAC, 871 F. Supp.
1466, 917 F. Supp. 851 (D.D.C. 1994).
FEC v. Colorado Republican Federal Campaign Committee,
116 S. Ct. 2309 (1996).
These enforcement actions, however, are only the
tip of the iceberg since many enforcement actions never progress
beyond the administrative level. Such administrative investigations,
however, can be equally chilling on free speech. See, e.g.,
MUR 4203 regarding U.S. Term Limits, attached as Exhibit
In addition, the FEC has attempted to buttress its
position regulating issue advocacy by extensive regulatory proceedings
resulting in the adoption of the following regulations which have
been invalidated by courts:
11 CFR 114.4(b)(5) invalidated in Faucher v. FEC,
928 F.2d 468 (1st Cir. 1991).
11 CFR 114.1(e)(2) invalidated in Chamber of Commerce
v. FEC, 69 F.3d 600 (D.C.Cir. 1995).
11 CFR 100.22 invalidated in Maine Right to Life
Committee v. FEC, 914 F. Supp 8 (D.Me. 1996), aff'd,
98 F.3d 1 (1st Cir. 1996).
11 CFR 114.10 invalidated in Minnesota Citizens
Concerned for Life v. FEC, 936 F. Supp. 633 (D. Minn. 1995).
11 CFR 114.4(c)(4) & (5) invalidated in Clifton
v. Federal Election Commission, 927 F. Supp. 493 (D.Me. 1996).
PROPOSALS FOR REFORM
In order for Congress to successfully rein in the
FEC and prevent further attempted FEC violations of free speech,
certain reforms are needed. First, the speech-protecting rules
adopted the courts should be incorporated in the Act itself.
If this were done, the FEC might actually feel bound by them.
Second, certain reforms are needed in the structure and administration
of the FEC.
These proposals are as follows.
1. Section 441b of the FECA Should Be amended
to Reflect the Protections of Issue Advocacy and of the Political
Speech of Not-for-Profit Corporations.
Section 441b of the FECA makes it unlawful for any corporation "to make a contribution or expenditure in connection with any (federal) election." However, the United States Supreme Court in FEC v. MCFL, 479 U.S. 238 (1986), imposed two significant limitations on this prohibition.
First, the Court interpreted ' 441b to be limited
to expenditures for "express advocacy." Second, the Court held
that the prohibition on corporate expenditures were not applicable
to certain not-for-profit corporations. These limitations should
be incorporated by Congress in ' 441b by amending it.
After Buckley, Congress amended the FECA to
incorporate changes in the statute required by the Court. For
instance, Congress amended ' 434(c) to reflect that disclosure
of expenditures by organizations that were not political committees
were limited to "independent expenditures" and adopted a definition
of "independent expenditure" in ' 431(17).
Similarly, Congress should amend ' 441b to provide
that it is unlawful for any corporation "to make a contribution
or to make an expenditure which expressly advocates the election
or defeat of a clearly identified candidate."
In addition, ' 441b should be amended to add
a new subsection which provides that the prohibition on a corporation
making an expenditure which expressly advocates the election or
defeat of a clearly identified candidate does not apply to a not-for-profit
membership corporation which (1) does not engage in substantial
business activities that are unrelated to the charitable, educational
or political activities of the organization, except for the traditional
fundraising activities of not-for-profit organizations, (2) has
no shareholders or other persons affiliated so as to have a claim
on its assets or earnings, and (3) was not established by a business
corporation or a labor union and does not receive a substantial
portion of its contributions from such entities.
These changes would conform with the Court's decision
in MCFL, 479 U.S. 238 (1986), see also Day v. Holahan,
34 F.3d 1356 (8th Cir. 1994); FEC v. Survival Education Fund,
Inc., 65 F.3d 285 (2d Cir. 1995), and would signal the willingness
of Congress to abide by this important issue advocacy protecting
decision. Furthermore, incorporating these changes in the statute
will make it readily apparent to all that this provision is narrow
on its face; where now one has to read the United States Reports
to know about this significant limitation.
2. The Definition of Contribution Should Be Amended
to Clarify that It Does Not Apply to Issue Advocacy.
In FEC v. Colorado Republican Federal Campaign
Committee, 116 S. Ct. 2309 (1996), the Federal Election Commission
sought to regulate and restrict issue advocacy by claiming that
issue advocacy becomes a contribution to a candidate C and subject
to the contribution limits C if the expenditure for the issue
advocacy was coordinated with a candidate. There is no justification
for issue advocacy losing its protected status just because it
has been communicated to a candidate.
This misguided attempt to circumvent the protection
of issue advocacy in Buckley can be prevented by adding
to those items listed in ' 431(8)(B) C as not being included
in the definition of "contribution" C any expenditure for a communication
which does not expressly advocate the election or defeat of a
clearly identified candidate."
3. The Definition of Political Committee Should
Be Amended to Reflect the Court's Major Purpose Test.
The Court in Buckley held that an organization
cannot be considered a "political committee" unless the organization
is "under the control of a candidate or the major purpose of the
organization is the nomination or election of a candidate." 424
U.S. at 79. Unfortunately, when Congress amended the FECA after
Buckley, this limitation was not included.
The effect of Congress's failure to modify the definition
of "political committee" (found in ' 431(4)(a) of the FECA)
to meet Buckley's requirements has been to encourage the
FEC to run amuck trying to impose on issue advocacy groups the
requirements imposed on PACs in the FECA. This has had the effect
of chilling the legitimate issue-oriented activities of such groups
and has imposed substantial costs on them in their efforts to
resist such unconstitutional impositions. Congress should make
this change now by amending ' 431(4)(a) by adding at the
end the following words: "and which is under the control of a
candidate or the major purpose of which is the nomination or election
of a candidate."
4. Limits on Issue Advocacy for Tax Exempt Groups
in the Internal Revenue Code Should Be Eliminated.
The Internal Revenue Code imposes limits on issue
advocacy for tax exempt organizations. Specifically, the Internal
Revenue Code prohibits groups exempt under ' 501(c)(3) from
"participat[ing] in, or interven[ing] in [including the publishing
or distributing of statements], any political campaign on behalf
of any candidate for public office." Organizations that are exempt
under ' 501(c)(4) may engage in political activity but such
activity must be "insubstantial" and is subject to a tax under
Unfortunately, the Internal Revenue Service has given this provision a very expansive interpretation which clearly encompasses issue advocacy. For instance, in Revenue Ruling 78-248, the IRS interpreted this provision to include voter guides, even though they only contained issue advocacy and did not contain any "express advocacy." As a result, not-for-profit group have been chilled in the exercise of their constitutional right to issue advocacy.
Congress should correct this clear violation of First
Amendment speech by bringing this provision into compliance with
Buckley. This provision should be amended to read that
this exemption is available to ' 501(c)(3) organizations
that "do not contribute to any political candidate, political
committee, or political party and do not make any expenditures
expressly advocating the election or defeat of a clearly identified
candidate for political office." Furthermore, Congress should
make it clear in the statute that ' 501(c)(4) organizations
are not subject to a tax except on any contribution to a political
candidate, committee, or party and on any independent expenditure
expressly advocating the election or defeat of a clearly identified
5. The FEC Should be Mandated, in its Regulatory
Activities, to Observe the Limits Imposed by the First Amendment.
Since the admonitions of the courts have left the
FEC unchastened in its regulatory efforts to contain issue advocacy,
Congress should mandate that, in its regulatory activities, the
FEC should act in a manner that will have the least restrictive
effect on the rights of free speech and association protected
by the First Amendment. To give this provision some teeth, a
reviewing court should be authorized to hold unlawful and set
aside any action of the Commission that did not use the least
restrictive means available.
6. Reasonable Attorneys Fees Should Be Authorized
by Congress if any Provision of the FECA or Action of the FEC
Violates Constitutionally Protected Rights.
The provisions of 42 U.S.C. ' 1988, authorizing
an award of attorney fees to prevailing private party plaintiffs
who are seeking to vindicate constitutional rights, are a substantial
deterrent to states violating the guarantees of federal law.
While federal law does not generally allow for an award of attorney
fees against federal agencies, it is justified in this case for
First, the FECA uniquely involves the attempt by government to regulate vital First Amendment rights that are "indispensable democratic freedoms." P"rticularly in light of the efforts by some to pass provisions known to be unconstitutional, a provision that allows an award of attorney fees for a successful effort to strike down a portion of the FEC" is warranted.
Second, the FEC has a sorry history of repeated attempts
to unconstitutionally expand its powers to regulate issue advocacy.
A significant deterrent to such intransigence, and a justified
effort to compensate the victims of it, would be to award attorney
fees to those private parties that prevail in FEC enforcement
actions or in cases against new FEC regulations.
Finally, in order to serve as a credible restraint
upon the FEC, any award of attorney fees to a prevailing victim
of an FEC endorsement or regulatory effort should be paid out
of the FEC's budget.
6. The Act Should Establish Term Limits for FEC
Commissioners, Staff Director, and General Counsel.
Because of the strong institutional bias toward regulating
free speech in the FEC, fresh blood is needed at the higher echelons
of the Commission. This could be established by providing term
limits for the Commissioners, Staff Counsel, and the General Counsel.
The FEC is an agency out of control. Instead of carrying out its legitimate administrative role, it has expended considerable resources seeking to restrict, stifle and punish constitutionally protected free speech. Congress has an urgent duty to reorder the priorities of the FEC in order to protect citizens and grassroots organizations from the heavy hand of the censors at the FEC. Until the FEC has demonstrated a proper sensitivity for First Amendment rights, it should not be entrusted with further authority to intrude into the vital workings of our representative democracy.